Labor law covers a great deal of territory, from wages, work hours, transfers and performance evaluation to dismissals, selling of business rights and industrial accidents. One subject often overlooked is break time or kyūkei. My labor law encyclopedia devotes far fewer pages to this subject than just about any other topic. It is, after all, labor law, not “rest law.”
I knew one labor law scholar who chose kyūkei as the theme for several dissertations. When I asked him why, he said, “Because I like break time better than work time.”
I understood what he meant completely. Breaks are better than work. Don’t we all think so, deep in our hearts? Let’s not kid ourselves.
From a productivity perspective, too, a worker’s rested body and mind can accomplish more and is less prone to falling victim to industrial accidents — accidents that may require payment of workers’ compensation. Employees working long hours need time to refresh their bodies and minds if they are to avoid errors and accidents, and for that they need to temporarily reclaim their freedom from toil.
So what do our labor laws say about kyūkei?
First of all, kyūkei must be a period within the work hours of that day. This means that the time after the whistle blows is neither work nor break but simply “after hours.” The second part of the definition of kyūkei is that is a guaranteed right for workers to be free from labor of any kind.
These features were laid out in two directives to prefectural labor standards bureaus, in 1947 and 1964.
Article 34 of the Labor Standards Act also deals with breaks. It says:
1. An employer shall provide workers with at least 45 minutes of rest periods during working hours in the event that working hours exceed six hours, and at least one hour in the event that working hours exceed eight hours.
2. The rest periods set forth in the preceding paragraph shall be provided to all workers at the same time. However, this shall not apply in cases where the employer has entered into a written agreement regarding providing rest periods to employees at different times, either with a labor union organized by a majority of the workers at the workplace (in the case that such a labor union is organized) or with a person representing a majority of the workers (in the case that such a labor union is not organized).
3. An employer shall permit workers to use the rest periods stipulated in paragraph 1 freely.
Note that if you work exactly six hours, your employer is not obliged to give you a precious minute of break time. Only when your work hours pass the six-hour mark — by even a second — does your employer need to give you breaks totaling at least 45 minutes. The same goes for the eight-hour mark and the one hour of breaks.
Let’s look at a court case that cites paragraph 3 of Article 34, i.e., the principle of the worker’s freedom to use the break as he or she sees fit. The Supreme Court on Nov. 13, 1979, ruled against Sumitomo Chemical for making a worker stand watch over a furnace throughout his break. Japanese courts order notoriously puny punitive damages — ¥300,000 in this case — but the text of the verdict is what concerns us here: “It is clear that in order to ensure the principle of free use of break time, the start and end times of breaks must be stipulated and a worker cannot freely take a break free of anxiety if in particular the end time is not stipulated.” Well put, in my opinion.
The principle of free use, however, is not free free. Rather, free use of breaks comes with the logical constraints based on ensuring smooth management of the work facilities and maintaining workplace order. Such constraints include not interfering with the breaks or work of other workers and making a smooth transition back to work and the end of breaks.
Our second court case involves a worker who leafleted in the workplace cafeteria of then-state-owned telephone giant NTT Corp. to protest an order by his boss to remove a placard he was wearing that read, “No to the Vietnam War! No to expansion of the U.S. base at Tachikawa!” The employer claimed the action violated the work rules (shūgyō kisoku), which stated that any leafleting at the workplace required prior management approval.
The employee claimed NTT was violating his right to free use of break time. But the Supreme Court ruled on Dec. 13, 1977, that the leafleting “interfered with the right of other employees to use break time freely, reduced work efficiency afterward and disrupted corporate order and the running of the company, regardless of the content (of the fliers).” This ruling reflects a possible constraint to free use when the break is taken on company premises.
One more thing we must cover before we wrap up is the issue of standby. While on standby, a worker is not technically working, nor technically free to do as he or she pleases. Examples would include when a nighttime building security guard sleeps in an office, ready to be awoken in the event of any trouble, or a clerk waits for a customer to arrive. The law sees such time as labor for which wages must be paid.
Some particularly stingy employers will try to get their employees to wait on standby for hours on end — for example, for customers that never come — without paying them for their time. Such employers try to claim the time is a “break,” even though the worker is not free to leave the workplace or do as they please.
Our final court case involves a particularly malicious sushi shop owner who told his chef and dishwasher they could take a break only when there were no customers to attend to or work to do. The shop — Sushidokoro Sugi — didn’t pay them for these hours, claiming it was “break time.” Japan’s highest court ruled on March 24, 1981, that even though they were not engaged in work at the time, they were on standby to resume work immediately when the employer demanded it (i.e., when a customer arrived). Standby means work, and work means wages.
The Supreme Court ruled that such time could not be treated as a “break” since the workers were not free to use the time in any way they pleased. The time they had spent waiting pushed the workers over the 40-hour-per-week limit, meaning not only did the shop have to pay for the extra time, but the pay was at the higher overtime rate (125 percent).
If your employer is keeping you waiting long hours on standby without paying you and calling it “break time,” they are breaking the law. If you happen to work for such an employer, it’s important that you insist on your right to remuneration, and to a genuine break. With proper breaks come productive labor.
Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at tozen.okunuki @gmail.com. On the fourth Thursday of each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.
Originally published in the Japan Times